BGH judgment on Cathy Hummels: When money flows, it’s advertising – media


Probably the story with the stuffed elephant tells most impressively how dazzling it is in this world between private small talk and cool marketing. Cathy Hummels, an influencer by profession, likes to reach out to around 600,000 followers on Instagram and talks about fashion, yoga and travel. Or about her life as a mother of a toddler, that’s where the elephant comes into play. In a post, she wanted to let her followers share in her baby happiness, but again not too much – she held the stuffed animal in front of the boy’s face. Quite spontaneously, of course, and without wanting to advertise a well-known soft toy company. In any case, the post was a “purely private publication”.

In the world of Influencers A lot seems very spontaneous and purely private, that’s part of the business model. But the business model also means that you have to be able to make a living from it, and that’s where stuffed animals come into play, or handbags, fitness drinks, sports shoes, branded clothing, eyeliner – the list goes on and on. Influencers do what their job title says, they influence lifestyles and purchase decisions.

The recommendations have an enormous impact on young people – this is one of the reasons why the judgment is so important

The Federal Court of Justice (BGH) now had to decide in three cases which rules apply to the expanding industry. This is important because the recommendations of influencers have an enormous influence on young people in particular. The BGH’s answer, in a nutshell: If advertising is paid for by third parties, it must also be labeled – if not, then not. And no money had been spent on the elephant.

The “Association of Social Competition” had filed the three lawsuits, who has set itself the goal of fighting for fair competition. One of the defendants was Cathy Hummels, another Luisa maxim Huss, who mainly posts on fitness and nutrition. And finally Leonie Hanne, one of the big names in the industry with 3.6 million subscribers. Her focus: beauty, fashion, lifestyle, travel.

So when does it count as surreptitious advertising if you hold a stuffed animal in the picture – and when not? Or, to put it another way: When does a post have to be marked as advertising? This is already happening in many cases on the relevant accounts. Nevertheless, there is evidently a certain reluctance among influencers to write “advertisement” or “advertising” across the board, so to speak – because the spontaneous and personal recommendations lose their authenticity. “That would make us totally unbelievable,” said Luisa-Maxime Huss in a recent interview with Time online known. “That would look like a permanent advertisement and I am not.”

It’s about business, even if it looks private. The court ruled that consumers know that

On closer inspection, the BGH was dealing with two forms of advertising. Dealing with self-promotion is less complicated. It is clear to the BGH that influencers such as Hummels, Hanne and Huss, as confidential as they may chat with their followers, run a company. Your posts are suitable for increasing your awareness and advertising value, according to the court’s statement. A labeling requirement for self-marketing does not follow from this – because it is already clear to the followers that it is about business. For example, to promote a training app, like with Huss. The Hamburg Higher Regional Court had put this in the case of Leonie Hanne: “The clothing of commercial interests in allegedly private matters becomes clear on the defendant’s posts and is a marketing measure that is not hidden from the consumer and is also known to her.”

However, dealing with the presentation of third-party products is more difficult. Specifically, it was about so-called “tap tags” that were placed on certain products. With the first click the brand name appears, the second click leads to the manufacturer’s Instagram account. The BGH considers the second click in particular to be problematic. Anyone who sets such a link to the manufacturer comes under the influence of the law against unfair competition and must therefore observe certain rules, such as the ban on misleading advertising.

Anyone who praises the benefits of products on Instagram without being paid for them is not doing commercial advertising

But that was not the point in any of the three cases, only labeling and surreptitious advertising. On this point, Luisa-Maxime Huss alone got a rebuke because of a “tap tag” that was linked to raspberry jam – for a fee, as she had disclosed. That was enough for a conviction. The posts about which Cathy Hummels argued were, however, either marked as “paid partnership with …”. Or it was – at least as the lower authorities had determined – no consideration was given. It was similar with Leonie Hanne. But anyone who merely presents the advantages and properties of certain products without having been rewarded for them is moving in the same sphere as the fashion magazines of the old analogue world. Editorial information is allowed, nothing else applies to Instagram.

With its first contribution to influencer marketing, the BGH made it clear that advertising is a question of money – more precisely: the consideration. The delimitation will be made in a similar way in an amendment to the law that will come into force next year. Still, that doesn’t answer everything. For example, the question of what exactly should be classified as consideration or consideration in these cases. Just a transfer to the account? What if a company pays not with money, but with expensive products or expensive trips that are somehow part of the account’s portfolio? That will probably only be clarified by future judgments, in case of doubt in Karlsruhe at the BGH.

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